German Federal Court lays down online review guidelines

A dentist was evaluated by a patient in an online evaluation platform for doctors. The evaluation was carried out by using grades (from 1 to 6) for five categories. The doctor was rated at 4.8. The patient did not disclose his identity, which was not necessarily required by the platform. The dentist claimed that he had never treated this patient and objected to this rating. He asked the platform to delete the evaluation. The operator of the platform (Operator) forwarded the objection to the patient. Because of data protection concerns the Operator did not send the patient’s response to the dentist. Yet the Operator informed the dentist that they had received documents that proved that the treatment did actually take place. The rating remained on the platform.

The dentist sued the Operator and demanded that the evaluation be taken down as well as disclosure of the patient’s name or, alternatively, handing over of the documents he provided to the Operator. The court of first instance granted the take down claim but rejected the other claims (Regional Court of Cologne, docket no. 28 O 516/13). The Higher Regional Court of Cologne rejected the claims entirely upon the Operator’s appeal against the judgement (docket no. 15 U 141/14) but on further appeal by the doctor the BGH set aside this judgement and remitted the case back to the Higher Regional Court (judgement of 1 March 2016, docket no. VI ZR 34/15).

In accordance with previous decisions the BGH said that the contested rating cannot be considered as a statement of the Operator itself because it was not adopted by the platform as its own rating. In these cases the Operator is only liable for such (third parties’) statements if the Operator has violated so called “reasonable examination duties” (“zumutbare Prüfungspflichten“). The respective extent of such duties depends on the circumstances of each case.

The BGH held that operating an evaluation platform carries a higher risk of personality-rights violations (“Persönlichkeitsrechtsverletzungen“) than the operation of other internet-platforms. This risk is increased in this case due to the fact that evaluations can be placed anonymously. For these reasons the BGH was of the opinion that the Operator had to forward the dentist’s objection to the patient and to request him to furnish detailed particulars about the treatment; the Operator had to request respective documentation such as, for instance, prescriptions or other verifying documents.

Moreover, the BGH held that the Operator had to provide to the dentist any information received from the patient, save for personal data unless the Operator is allowed to disclose it (e.g. the patient has consented). In this case, for instance, it would have been possible to anonymise the information provided by the patient and hand it over to the dentist.

Why this matters:

The duties of operators of online evaluation platforms in Germany to examine ratings or other evaluations have been increased significantly by this judgment. These duties are not only applicable to platforms for the evaluation of doctors but to any other services where the personality rights of the rated professional are affected. It remains to be seen whether this decision will also affect the rating of other products such as goods (e.g. electronic devices) or services that are carried out in a less personal manner (e.g. restaurants or hotels).

Ratings and evaluations of services within the scope of this decision will have a higher quality from now on. Any faked ratings identified by the operator upon request will have to be deleted. However, it has to be noted that it remains possible to rate a service anonymously and very critically. Such ratings are, in most cases, considered as mere opinions and not as factual statements. Other than false factual statements even intense criticism is allowed in general and can be disseminated legally.